The Work and Families Act (Northern Ireland) 2015 (the "2015 Act") governs the new shared parental leave ("SPL") and statutory shared parental pay ("SSPP") regime which will be available for eligible employees whose baby is due on or after 5 April 2015 or who have a child placed with them for adoption on or after that date.
The new SPL is aimed at giving parents more choice and flexibility in how they care for their child while enabling both parents to retain strong links with the labour market, helping employees better reconcile their work and non-work lives, helping employers to secure the business benefits of flexible working, and increasing the flexibility for employers and employees to reach agreement on how best to balance work and domestic needs.
Women will continue to be eligible to take up to 52 weeks of maternity leave (or in the case of adopters (including in surrogacy), 52 weeks of adoption leave). The same qualifying arrangements for statutory maternity pay or maternity allowance will continue to apply. As now, statutory maternity pay and maternity allowance will be paid to eligible mothers for up to 39 weeks.
SPL will be created where an eligible mother or adopter ends their maternity or adoption leave early (called "curtailing"). The untaken weeks of maternity or adoption leave can be taken as SPL if the eligibility criteria are met. Likewise SSPP will be the residual amount of statutory maternity or adoption pay unused by the mother or adopter.
Who is eligible for SPL?
Only employees are entitled to SPL. Agency workers, self-employed parents, or parents who are not employed, are not entitled to SPL.
An employee must
- have been continuously employed by their employer for 26 weeks up to and including the 15th week before the week in which their baby is due to be born (or, in adoption, in the week in which the adopter is notified of having been matched with a child), and is still employed by you in the week before any SPL is due to start
- share the main responsibility for the care of the child that the SPL relates to.
The other parent must meet an "employment and earnings test" to qualify for SPL which means they must have been an employed or self-employed earner in Northern Ireland for a total 26 weeks (not necessarily continuously) in the period of 66 weeks leading up to the week in which the child is due (or matched for adoption) and to have earned an average of £30 a week in 13 of those weeks (not necessarily continuously). The employer is not responsible for checking this.
Who is eligible for SSPP?
To qualify for SSPP, an employee must
- meet the qualifying requirements for SPL and have a partner who meets the employment and earnings test and
- have earned not less than the lower earnings limit in the relevant period (which is the 8 weeks leading up to the 15th week before the week in which the baby is due to be born, or the week that the adopter is notified of being matched with a child).
Only a mother or adopter who qualified for statutory maternity or adoption pay will be entitled to shared parental pay. Where a mother was entitled to maternity leave but only maternity allowance she will be entitled to SPL but not SSPP. An employee's partner may be entitled to SSPL if he (or she) qualified for statutory paternity pay.
There are special arrangements for agency workers but a self-employed person, or a person who is not working, will not be eligible for shared parental pay.
SPL is created by the mother or adopter curtailing maternity or adoption leave early.
A mother cannot curtail her maternity leave until after the end of the compulsory maternity leave, therefore they cannot curtail maternity leave and pay until 2 weeks after the birth (or 4 weeks if working in a factory or workshop). An adopter, or the parental order parent in surrogacy, must take at least 2 weeks of adoption leave and pay before it can be curtailed.
Therefore, the maximum amount of SPL is 50 weeks and the maximum amount of SSPL is 37 weeks, although there are special rules in the event of the death of the mother or adopter.
To curtail maternity or adoption leave and employee can either
- return to work on the agreed date or on giving 8 weeks' notice to return or
- give notice to end maternity or adoption leave which must be given at least 9 weeks before the end of the 52 weeks of maternity or adoption leave is due to end.
A notice of curtailment may only be revoked if they have not returned to work, the curtailment date has not passed, and which meets one of specific circumstances.
To avail of SSPL the mother or adopter must give notice (to the employer or, in on maternity allowance, to Jobcentre Plus). A mother or adopter cannot curtail maternity or adoption pay or maternity allowance if neither she nor her partner is entitled to SPL or statutory shared parental pay.
An employee is required to let their employer know that he or she qualifies for SPL and pay if he or she intends to take it and share SPL between them. The employee must give at least 8 weeks' notice to take any SPL and/or pay and the notice will include
- the number of weeks maternity or adoption leave taken (or will have taken)
- how many weeks of SPL and pay is available to him or her and their partner
- how much each intends to take
- a declaration from your employee's partner stating that he or she meets the employment and earnings test and that he or she gives their consent to the employee taking SPL and/or pay and to the employer processing information provided by them and
- a non-binding indication of how the employee will take the SPL that is available to him or her.
An employer can ask the employee for the name and address of the other parent's employer and your employee is required to provide it and can also ask for a copy of the child's birth certificate.
Once the employee provides the above notification, he or she has to submit a notice to "book" a period of leave, although this can be done at the same time as the notification. A notice to book leave must be given at least 8 weeks before leave can be taken.
An employee may only give 3 notices to book leave or to vary a previously agreed pattern of leave, but this can be increased to more than three by the employer.
The notice may specify a single, continuous block of leave or may request discontinuous periods of leave. If the employee requests a single block of leave in their booking notice they are entitled to take it and this cannot be refused. If the employee requests a pattern of discontinuous leave an employer does not have to agree to this pattern and there is a 2-week discussion period to seek to agree a pattern. If there is no agreement the employee can then specify a single continuous block starting on a date specified by the employee (not less than 8 weeks from the date the original notice was given). Given that there may be more than one employer, it would be beneficial to deal with proposed patterns when the first notification is given regarding entitlement to SPL.
Leave arrangements that have been notified can be changed by means of a notice to vary the agreed leave on giving 8 weeks' notice. An employee can give notice to end a period of leave earlier or later than previously notified, or to aggregate a number of discontinuous weeks into a single block using a variation notice. Such notices to vary count towards the cap of 3 notifications.
An employee is not entitled to withdraw a notice for a single continuous block of leave.
An employee may withdraw their notice to ‘book’ discontinuous leave within 15 days of giving it, providing that they have not already reached an agreement with the employer about when they will be absent from work. If a notice is withdrawn it does not count towards the cap of 3 booking notifications.Once the 15th day has passed, any change to the period of leave booked must be done by a variation notice. This is subject to 8 weeks’ notice and counts towards the cap of 3 booking notifications.
SPL and SSPP cannot begin before the birth (or placement for adoption) and must be taken within 1 year of the birth or the date that the child was placed with the family.
Keeping in touch under SPL?
Each parent entitled to SPL or SSPP will have an individual entitlement to 20 shared parental leave in touch (“SPLiT”) days. This will enable them to work on up to 20 days (per employer if a parent has multiple employers) either continuously or on odd days without bringing to an end their SPL or pay.
What will be the rate of SSPP?
SSPP will be paid at the rate of £138.18 (£139.58 from 6 April 2015) a week or 90 per cent of average weekly earnings, whichever is lower. This is the same as Statutory Maternity Pay (SMP) except that during the first six weeks SMP is paid at 90 per cent of average weekly earnings, with no cap.
Contract and detriment
During any period of SPL an employee benefits from all of the terms and conditions of employment which would have applied if the employee had not been absent from work (except for remuneration).
An employee is protected from detriment and from unfair dismissal connected with the taking of SPL.
If an employee is made redundant whilst on SPL, he or she is entitled to be offered a suitable alternative vacancy if one arises. This is the same as the level of protection available to a mother on maternity leave.
Employees who meet the qualifying requirements and have correctly notified their employer of their entitlement to, and intention to take, SPL and/or or pay and who have booked the SPL and/or pay have a statutory right to it.
Returning to the same job
The right to return to the same job will be maintained for returning from any period of relevant statutory leave that includes maternity, or paternity, adoption or SPL that totals 26 weeks or less in aggregate. Therefore, an employee who takes 26 weeks or less of any combination of relevant statutory leave will have the right to return to the same job. Periods of unpaid parental leave of more than four weeks are excluded from the "26 week calculation".
Once the employee has taken more than 26 weeks of relevant statutory leave in aggregate (including any combination of maternity, paternity, adoption or SPL) then the employee will have the right to return to the same job that they were doing immediately preceding the last period of absence, or, if it is not reasonably practicable for the employer to permit the employee to return to that job, to another job which is both suitable for the employee and appropriate for the employee to do in the circumstances.
What else is changing under the new legislation?
The 2015 Act also introduces changes to the existing adoption leave and pay regime and employees (including the mother's husband/ civil partner/ partner, the father or parent of the child and intended parents under surrogacy arrangements) will also be entitled to take unpaid time off to attend up to two ante-natal appointments with a pregnant women and to adoption placement meetings.
Provision is also made for paid and unpaid time off work for adopters to attend meetings in advance of a child being placed with them for adoption.
There will be changes to adoption leave and pay from April 2015, when adoption leave will be available to employees from the first day of their employment, bringing adoption leave into line with maternity leave. Statutory adoption pay will be enhanced to 90% for the first 6 weeks bringing it into line with statutory maternity pay.
This is a very significant change which has considerable implications in terms of workforce planning, particularly given the complexity of the draft regulations and a number of unanswered questions (such as the position in relation to enhanced pay). Employers need to prepare for the introduction of this system and consider how policies and approaches might need to be reviewed in light of the reforms and their intended approach.
Employers should also consider the level to which they will need to communicate changes with employees and ensure that line managers who will be dealing with requests receive any necessary training and information to equip them to do so.
Reproduced courtesy of Pinsent Masons LLP
Whilst every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.